Since last summer there has been a lot of debate about the role of the NSA and it’s surveillance techniques. Even in Minnesota – pre-Snowden leaks – we’ve had our own privacy/surveillance issues: the spreading of license plate cameras and collection of the comings and goings of innocent Minnesotans, and the invasion of privacy by people who have access to the DVS databases.
Besides that, Minnesota law enforcement agencies are seeking sensitive data from third parties such as Sprint, ATT, and Verizon that show the locations of their customers’ cell/smart phones – both in real time, and historically. They are doing this in a number of ways – including through the use of Kingfish/Stingray technology that I’ve written about before, as well as through administrative subpoenas.
Based on data requests, media coverage and testimony by law enforcement officials at a recent Minnesota House hearing, cops in Minnesota are making use of quarter century old laws written when there were no smart phones and GPS.
The grounds for requests for location data in Minnesota are based primarily on state laws that were written when there were no things such as the Kingfish/Stingray, or GPS location chips in cell/smart phones. Under these laws, police only have to show, generally, that “location data” are “relevant” to a criminal investigation in the statutes. The low standard is different than a Fourth Amendment based search warrant. In data requests, it appears that law enforcement get location data in two ways primarily: administrative subpoena or a court order.
Here is an example of subpoenas by the Minnesota Department of Public Safety. Note the GPS location language. This data is gotten by the Minnesota Department of Public Safety not by court order, search warrant, but by subpoena.
In regards to the use of the Stingray/Kingfish, it seems that a low threshold court order is used – not a search warrant.
Over the last two years I have gotten information about this trend by using the data practices law. This has been quite an experience in itself. It took seven months to get access to court orders from the Hennepin County Sheriff. It took several months to get four administrative subpoenas from the Minneapolis Police Department. Some law enforcement agencies answered, others did not.
What the data requests showed is that Minnesota law enforcement is using advancements in technology to gain access to massive amounts of location data that intrudes on one’s privacy and autonomy. I have no problem with law enforcement using these tools if there is a real need. But there has to be public discussion, we have to know what law enforcement is doing, and there has to be robust, strong, privacy protections (search warrant) and accountability, public scrutiny, and transparency.
This issue is important. The data that the device in your pocket produces can reveal your associations and politics, or – as Justice Sotomayor stated – people do not “expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”